Olivera Bradaric v Uber Australia Pty Ltd
[2020] FWC 2674
•25 MAY 2020
| [2020] FWC 2674 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Olivera Bradaric
v
Uber Australia Pty Ltd
(U2019/13923)
COMMISSIONER HARPER-GREENWELL | MELBOURNE, 25 MAY 2020 |
Application for an unfair dismissal remedy – s.399A application to dismiss – extension of time – not an employee.
[1] Ms Olivera Bradaric (Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) in which she says she had been unfairly dismissed by Portier Pacific Pty Ltd and Uber Portier B.V. (Uber) (Respondent).
[2] The first matter I must deal with is the name of the correct entity. Ms Bradaric names the Respondent to her application as Uber Australia Pty Ltd. The Respondent submits the correct entity is Portier Pacific Pty Ltd and Uber Portier B.V. I am satisfied the correct entity is as submitted by the Respondent, therefore I exercise my powers under section 586(a) and amend the application accordingly.
[3] By way of background on 4 February 2018 Ms Bradaric entered into a service agreement with Uber as a delivery-partner who used a smartphone application known as the ‘Uber Eats App’ to connect with restaurants looking for food delivery services. Uber terminated Ms Bradaric’s Services Agreement with immediate effect on 20 April 2019.
[4] On 22 April 2019 Ms Bradaric lodged a General Protections application submitting her dismissal date as 20 April 2019. Uber lodged a response to the claim on 7 June 2019. On 5 August 2019, Uber was notified in writing by the Commission that Ms Bradaric had decided to withdraw her General Protections application.
[5] On 11 December 2019 Ms Bradaric filed her Unfair Dismissal application. In her application Ms Bradaric states her date of dismissal was 7 December 2019. The matter was listed for a number of conciliations however Ms Bradaric failed to attend on each occasion.
[6] The first conciliation was to take place at 9:15am on 22 January 2020. At 2.59am on that same day Ms Bradaric contacted the Commission by email requesting an adjournment as she was unable to attend the conciliation “due to hospitalisation”. The adjournment was granted and Ms Bradaric was required to provide evidence in support of her request however she failed to do so.
[7] The matter was again listed for conciliation on 28 January 2020. The Commission was once again unable to make contact with Ms Bradaric and she failed to attend the scheduled conciliation.
[8] On 28 January 2020 at 3:21 and again at 3:25pm Ms Bradaric emailed the Commission stating that she was in the hospital and therefore was unable to answer the call however she would be available later that week. Ms Bradaric has not submitted any evidence that supports her claim that she was in hospital on 28 January 2020.
[9] On 30 January 2020 Ms Bradaric again sent an email to the Commission stating that she was unable to take the scheduled call from the Commission due to “health issues”. Ms Bradaric also stated in her correspondence that she was seeking advice from “the Union”.
[10] The matter was again listed for a conciliation on 2 March 2020. Ms Bradaric once again failed to attend the scheduled conciliation. The matter was subsequently scheduled to proceed to arbitration on 24 April 2020. Ms Bradaric was advised an interpreter would be in attendance to assist her at the hearing.
[11] On 24 April 2020 at 3:30am and 3:39am Ms Bradaric emailed my Chambers requesting an adjournment to the matter because she was “unwell” and had “lost her voice”. At 8:02am Ms Bradaric was advised in that absence of any evidence to support her reasons for requesting the adjournment the matter would proceed at 9:30am as scheduled. No further correspondence was received from Ms Bradaric. At the commencement of the hearing my Associate made several unsuccessful attempts to contact Ms Bradaric.
[12] During the hearing, Uber made an application under s.399A of the Act to have the matter dismissed on the basis that Ms Bradaric had unreasonably failed to attend each of the previously scheduled conciliations and the jurisdiction hearing. They also submitted Ms Bradaric had previously failed to provide the Commission with the documentary evidence requested of her.
[13] Section 399A of the Act provides as follows:
“399A Dismissing applications
(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:
(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
(b) failed to comply with a direction or order of the FWC relating to the application; or
(c) failed to discontinue the application after a settlement agreement has been concluded.
Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.
Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).
(2) The FWC may exercise its power under subsection (1) on application by the employer.
(3) This section does not limit when the FWC may dismiss an application.”
[14] For the s.399A application to succeed, I must be satisfied that Ms Bradaric had unreasonably failed to attend a hearing held by the Commission.
Did Ms Bradaric unreasonably fail to attend the hearing?
[15] At the conclusion of the hearing, my Chambers wrote to Ms Bradaric advising that Uber had made an application to have the matter dismissed. Ms Bradaric was directed to provide written reasons and a medical certificate for her non-attendance at the hearing.
[16] On 24 April 2020 at 3:28pm Ms Bradaric left a voicemail message stating amongst other things that she could not attend the hearing earlier that same day because she had “lost her voice”.
[17] On 24 April 2020 at 4:29pm Ms Bradaric emailed my Chambers stating that she would provide further materials in support of her case and information from her doctor as evidence in support of her reasons for not attending the hearing and previously scheduled conciliations. Ms Bradaric also sent an email of a similar nature to the UDT rosters email account in which she states that she that has lost her voice due to a throat infection and cannot talk.
[18] On 28 April 2020 Ms Bradaric sent several emails to my Chambers and the UDT rosters email account. Ms Bradaric submits that her continued failure to comply with the attendance requirements was due to English being her second language, she needed an interpreter to assist her with legal matters and she does not have representation.
[19] Whilst I accept English is Ms Bradaric’s second language, Ms Bradaric is able to read, write and converse in English. Ms Bradaric also confirmed in her correspondence that she was aware an interpreter had been engaged by the Commission to assist her at the hearing. It is also noted that Ms Bradaric had provided correspondence to the Commission that she had been seeking the assistance of “the union” and had previously engaged with a legal firm.
[20] Ms Bradaric provided various other documents which included medical referrals, medical reports and receipts. I have reviewed the documentation provided and I consider the information contained within the majority of those documents provide inadequate reasons as to why Ms Bradaric failed to attend the scheduled conciliations and the jurisdiction hearing. Most of documents do not provide evidence of any incapacity, nor do any of the appointment dates correlate with the dates Ms Bradaric was required to attend her conciliations. However, I have given some consideration to a single medical report that provides Ms Bradaric suffers from anxiety.
[21] Ms Bradaric also provided a medical certificate for 24 April 2020 in which it states she was not fit for her normal duties. Whilst I consider the medical certificate to be inadequate in its details, it is obvious Ms Bradaric went to some lengths to obtain the certificate and seeks to have her matter determined.
[22] Whilst I do not consider the large volume of medical evidence submitted by Ms Bradaric to be entirely relevant in this matter, in her ongoing engagement with the Commission through both her written correspondence and phone calls she has indicated that she is seeking to have her matter heard and determined and it is evident that, as is the case with many unrepresented litigants, she may find the prospect of appearing before the Commission a daunting task.
[23] Whilst I would in the ordinary course consider Ms Bradaric’s failure to attend proceedings before the Commission sufficient enough reason to dismiss the s.399A application, taking into consideration collectively Ms Bradaric’s request to have the matter determined, the medical certificate and the medical report I dismiss the s.399A application and will determine the jurisdiction objection.
Should Ms Bradaric be granted an extension of time to lodge her Application?
[24] On 28 April 2020, correspondence was sent to the parties from my Chambers informing them that in the absence of any objections I intended to determine the application on the papers. No objection was received by either party.
[25] Uber objects to Ms Bradaric’s application on jurisdictional grounds. The first of those grounds is that Ms Bradaric’s application was not lodged within 21 days after the dismissal took effect, as required by s.394(2)(a) of the Act. Secondly, Uber submits the Commission does not have jurisdiction to hear the merits of Ms Bradaric’s unfair dismissal application because she was not an employee. 1
[26] Uber submit Ms Bradaric was engaged on a Services Agreement as a delivery-partner who used a smartphone application known as ‘Uber Eats App’ to connect with third party restaurants to deliver food to their customers. Uber terminated Ms Bradaric’s contract on 20 April 2019.2
[27] Uber submit Ms Bradaric lodged a General Protections application to which they responded on 7 June 2019. They were notified on 5 August 2019 that Ms Bradaric had decided to withdraw her application. Uber submit that they had not received any correspondence from Ms Bradaric in the period of 5 August 2019 to January 2020.3
[28] Ms Bradaric filed two emails which outline her submissions. Ms Bradaric submits that she started working for Uber on 26 July 2018. Ms Bradaric had worked up until March 2019, she says her access to the Uber Eats App was disconnected in April 2019. Ms Bradaric submits during that period she purchased a vehicle through a finance arrangement and is now facing financial difficulty.4
[29] Ms Bradaric submits her access to the Uber Eats App was unfairly cancelled and that Uber had not cooperated in resolving the matter.5
[30] Ms Bradaric submits she lodged a General Protections application however that matter did not resolve. She submits she filed her Unfair Dismissal application because her account with Uber was stopped even though she had good ratings.6
[31] Ms Bradaric also submits during her period of employment she was subjected to abuse and was reported for late deliveries and unhappy customers which she submits was unfair.7
[32] Ms Bradaric submits she filed an Unfair Dismissal application in December 2019 because she was suffering from stress and hardship due to a car loan she had entered into in order to perform her delivery duties.8
Legislation
[33] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to s.394(3).
[34] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances.’ The meaning of ‘exceptional circumstances’ was considered by a Full Bench of what was then the Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty),9 where it was noted that, in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.10
[35] Section 394(3) of the Act requires the Commission to take into account the following:
“(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
Reason for the delay
[36] It is uncontroversial that Ms Bradaric lodged a General Protections application on 22 April 2019 and in that application, Ms Bradaric listed the date of her dismissal as 20 April 2019.
[37] Ms Bradaric also identifies her date of dismissal as 20 April 2019 in correspondence to the Commission. There is no evidence before me to suggest that Ms Bradaric’s employment came to an end on any other date, therefore Ms Bradaric’s application was lodged in excess of seven months outside of the 21 day period required by s.394(2) of the Act.
[38] From the date of her dismissal, Ms Bradaric was able to lodge a General Protections application and attend several medical appointments. Ms Bradaric also undertook some work experience. The evidence supports a finding that Ms Bradaric was not incapacitated for the entire 21 day period in which she could have lodged her application. Her evidence does not provide an explanation for the lengthy delay between the time of her dismissal and the lodging of her unfair dismissal application.
[39] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd11 the Full Bench noted that the absence of any explanation for any part of the delay will usually weigh against the applicant in assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.
[40] I do not consider that Ms Bradaric has made out an acceptable or reasonable explanation or combination of explanations for the delay in lodging her unfair dismissal application. This weighs against a finding that there are exceptional circumstances warranting an extension of the 21 day period.
Whether Ms Bradaric became aware of the dismissal after it had taken effect
[41] The consideration in s.394(3)(b) is ‘whether the person first became aware of the dismissal after it had taken effect’. It is not in contention that Ms Bradaric ‘first became aware’ of the termination of her contract on the same day that it took effect. She had the full period of 21 days to lodge her application. This consideration does not weigh in favour of an extension of time.
Any action taken by Ms Bradaric to dispute the dismissal
[42] There is no contention that Ms Bradaric had previously lodged a General Protections application disputing the termination of her contract.
[43] By contesting the decision of Uber to terminate her contract Ms Bradaric was in effect disputing its reasons for dismissing her. This weighs moderately in favour of an extension of time.
Prejudice to the employer (including prejudice caused by the delay)
[44] Uber submit it has in good faith continued to engage with Ms Bradaric and the Commission in relation to both applications and that the Commission should take into consideration the difficulties they have experienced in attempting to defend the application nearly one year after Ms Bradaric’s termination.
[45] Whilst I understand the inconvenience of having to defend an unfair dismissal application, this is not an uncommon occurrence. However, Ms Bradaric’s conduct over the course of this matter has attributed to this matter not being resolved at an earlier date which has been detrimental to Uber. This weighs against a finding in favour of granting an extension of time.
The merits of the application
[46] Uber submit Ms Bradaric was not an employee and therefore not a person protected from unfair dismissal. The nature of the engagement is somewhat disputed in Ms Bradaric’s correspondence as she has joined a class action against Uber on this matter.
[47] However, considering the merits of the application the factual contests in this matter can only be resolved through a proper consideration of the evidence. The merits would depend on the factual findings that the Commission would need to make, if an extension of time were granted and the matter proceeded. I am mindful that the material has not been fully explored or tested, I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
[48] Neither party made submissions on this criterion, therefore I consider fairness as between Ms Bradaric and other persons in a similar position to be a neutral factor.
Conclusion
[49] After considering the submissions and materials filed in this matter, I have concluded that I am not satisfied that there were exceptional circumstances warranting an extension of time for Ms Bradaric’s application to be made under s.394 of the Act.
[50] Accordingly, the application is dismissed. An order 12 to that effect will accompany this decision.
COMMISSIONER
Appearances:
No appearance by the Applicant.
C Loughlin with J Setter from the Respondent
Hearing details:
2020.
Melbourne (by Telephone):
April 24.
Printed by authority of the Commonwealth Government Printer
<PR719551>
1 Respondent’s Submission
2 Ibid
3 Ibid
4 Ms Bradaric’s Submissions 26 March 2020
5 Ibid
6 Ibid
7 Ibid
8 Ibid
9 [2011] FWAFB 975
10 Ibid
11 [2018] FWCFB 901 at [39]
12 PR719624
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